A group of local citizens plans to mark the anniversary of Citizens United with a protest on the Gettysburg square noon Saturday. This column originally ran The Evening Sun in December 2010. Please see previous entry on Citizens United as well.
Freedom of the press, the old saying goes, belongs to those that own one.
But it’s never been a principle of First Amendment law that those with more money are legally entitled to more speech than the rest of us.
At least not quite yet.
That seems to be the course the U.S. Supreme Court is taking, though. Last week, the justices agreed to hear a challenge to Arizona’s Clean Elections Law, which gives public money to candidates who swear off private fundraising.
The voters of Arizona, disgusted with elections bought and paid for by special interests, approved this law. It requires candidates to get $5 pledges to show some public support. And the public money they get comes from surcharges on civil and criminal penalties, so tax dollars aren’t spent.
To encourage candidates to take the public-funding high road, the law also provides more money to those whose opponents have raised more money on their own. And that doesn’t sit well with the conservatives on the Supreme Court, who are considering if those matching funds “deter” the speech of those with more money to spend.
Personally, I think the voters of Arizona, or the other states that have enacted similar laws, are constitutionally entitled in this republic to experiment with public election funding. They are entitled to try to fix the corruption and greed that choke the political process.
But the court has already taken the unusual step of stopping the disbursement of those matching funds in Arizona during the June primary season. And two years ago, the justices struck down a federal law that allowed candidates to avoid fundraising limits if they faced opponents using large amounts of their own money. Justice Samuel Alito called that law “a drag on First Amendment rights” because if rich candidates wanted to spend a ton of money on attack ads, their opponents would get more money to fire back.
It must be a drag to have to fight fair if you have a lot more money than your opponent. But I think Alito turns the First Amendment on its head – the only speech being silenced is that of the candidates whose money was cut by those unelected judges in the middle of the campaign.
But really, that’s not up to Justice Alito or me, but the plain language of the Constitution. The relevant part of the First Amendment states, “Congress shall make no law … abridging the freedom of speech, or of the press … .”
No one is telling wealthy candidates they can’t buy political advertising, so letting others raise similar amounts of money hardly seems an abridgement of their fundamental right to communicate. Still, I suppose the word “abridge” is a bit ambiguous.
So, one might ask what the framers of the Constitution might have meant by “abridging … free speech.” I think it’s fair to say they were more worried about newspapers having to secure the king’s approval before going to press or soapbox speakers hauled away by the bailiff than they were about any “drag” on well-heeled speech.
The other question to ask is what the founders thought about the government itself subsidizing speech, since government money is at the heart of any public-election financing plan. Back then, it was accepted practice for those publishers who supported the party in power to get lucrative government printing contracts. To the founders, the First Amendment meant you couldn’t silence your opposition, but there was nothing wrong with subsidizing the political speech of others.
I think the framers would have agreed with Justice Brandeis’ formulation that the correct remedy in First Amendment cases is “more speech, not enforced silence.”
That’s why I had to agree with the ruling last January in Citizens United v. Federal Election Commission, which overturned federal law prohibiting corporations, unions and special-interest groups from paying for ads for or against political candidates. I think the court was correct in striking down state and federal laws that limited corporate speech because of its “undue influence” on free and fair elections.
And I’d agree with Justice Thomas and the court’s conservatives that, “preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.”
But that’s exactly what the citizens of Arizona were trying to do – fight the corrupting influence of special-interest money on the electoral process. It is corruption of the principle of free speech to suggest the people can’t vote to fund campaigns, or that only the rich deserve full First Amendment rights.
I think it is a corruption of the Constitution, too, to suggest that corporations and other special interest groups enjoy the same rights as individuals, as the court did in Citizens United . As Chief Justice John Marshall, a founding father himself, put it, “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.”
On balance I supported the Citizens United decision because it stood for the principle of more speech, not less. But now the court seems determined to make the First Amendment less about speech, and more about preserving the economic advantages already enjoyed by the rich and powerful.
They can already afford a press if they want one, but if the court continues down this path, it is good government that will certainly pay the price.